Am. Indus. Corp. v. Pioneer Window Mfg. Corp.
| Decision Date | 29 October 2018 |
| Docket Number | INDEX NO. 610100/2016 |
| Citation | 2018 NY Slip Op 33880 (U) |
| Parties | AMERICAN INDUSTRIES CORP. OF NEW YORK, Plaintiff, v. PIONEER WINDOW MFG. CORP., Defendant. PIONEER WINDOW MFG. CORP., Third-Party Plaintiff, v. LENDLEASE (US) CONSTRUCTION LMB INC. formerly known as BOVIS LEND LEASE LMB, INC., Third-Party Defendant. |
| Court | New York Supreme Court |
SHORT FORM ORDER
Present:HON. TIMOTHY S. DRISCOLL Justice Supreme Court
Papers Read on this Motion:
This matter is before the court on the motion filed by Third-Party Defendant Lendlease (US) Construction LMB Inc. f/k/a Bovis Lend Lease LMB, Inc. ("Lend Lease") on September 11, 2018 and submitted on October 16, 2018. For the reasons set forth below, the Court grants the motion and dismisses the Third-Party Complaint.
Lend Lease moves for an Order, pursuant to CPLR § 3211, dismissing the Third-Party Complaint of Defendant/Third-Party Plaintiff Pioneer Window Mfg. Corp. ("Pioneer"). Plaintiff American Industries Corp. ("AIC" or "Plaintiff") provides an affirmation in support of the motion.
Pioneer opposes the motion.
The parties' history is set forth in detail in the prior decision ("Prior Decision") of the Court dated May 8, 2017 and the Court incorporates the Prior Decision by reference as if set forth in full herein. As noted in the Prior Decision, the Verified Complaint ("Complaint") alleges as follows:
AIC is a company that is engaged in the business of furnishing and installing windows and related products with respect to the improvement of commercial and residential premises. Pioneer is a company that is engaged in the business of manufacturing, fabricating, supplying, furnishing and selling custom architectural windows, curtain walls, window walls and related accessories with respect to the improvement of commercial and residential premises. Pioneer held itself out as having extensive knowledge and expertise regarding the manufacturing of window wall systems in commercial and residential premises.
29 Flatbush Associates, LLC ("Owner") is the owner of premises ("Premises") located at 29 Flatbush Avenue, Brooklyn, New York, on which the Owner sought to construct a forty two (42) story building consisting of residential units, retail space, a parking garage and amenity spaces, known as "29 Flatbush" and now known as "66 Rockwell Place" ("Project"). On or about December 20, 2010, Lend Lease (US) Construction f/k/a Bovis Lend Lease LMB, Inc. ("Lend Lease") entered into an agreement with the Owner pursuant to which Lend Lease agreedto provide construction management services as the agent for the Owner for the Project.
In or about July 2010, AIC received a bid package from Lend Lease, for whom AIC had previously performed work, with respect to furnishing and installing the exterior facade, a window wall system, for the Project. The documents in the bid package ("Bid Package") included the proposed contract to be entered into by Lend Lease with the contractor who had the successful bid, drawings and specifications. AIC contacted Pioneer about furnishing the materials for the exterior facade for the Project, with the intention that AIC would install the materials for the exterior facade, a window wall system, for the Project ("Project System").
Pioneer advised AIC that Pioneer would not only furnish the materials for the Project System, but was also willing to enter into a subcontract with a third party, other than AIC, to install the materials for the Project System and, in exchange for AIC bringing the business opportunity to Pioneer to furnish and install the Project System, Pioneer would compensate AIC as follows: after paying costs for labor and materials, Pioneer would divide the profit equally with AIC. AIC thereafter provided the bid package to Pioneer.
In or about April 2011, AIC, accompanied by Pioneer, went to a "close the job" meeting with Lend Lease (Comp. at ¶ 12) ("Meeting") to discuss the construction of the Project System. At the Meeting, Lend Lease agreed to award the contract for the furnishing and installing of the Project System to AIC for the sum of $7,750,000.00, with Pioneer having advised AIC that the cost for materials and labor would be $6,644,083.00. At the Meeting, Lend Lease also stated that the construction schedule was being delayed for ten (10) months due to issues relating to the foundation, and asked whether the Project System could be changed ("Initial Change") from a window wall system to a fusion wall system, with the price to be not more than the price for a window wall system. After confirming with Pioneer that the Initial Change was acceptable and could be implemented without a change in the cost of materials and labor, AIC agreed to the Initial Change.
On or about April 29, 2011, Lend Lease and AIC, with the knowledge and consent of Pioneer, entered into an agreement ("AIC/Lend Lease Agreement") pursuant to which AIC agreed to perform the work and furnish the materials for the fusion wall Project System for the agreed price of $7,750,000.00, as discussed as the Meeting. Shortly thereafter, Pioneer advised AIC that the third party with whom Pioneer intended to subcontract was unable to obtain therequisite bonding and, therefore, Pioneer did not have a third party to install the System. Pioneer and AIC then discussed entering into a joint venture pursuant to which Pioneer would manufacture the materials for the Project System and AIC would install the materials provided by Pioneer for the Project System. In or about May 2011, Pioneer and AIC entered into an oral joint venture agreement ("Joint Venture Agreement") pursuant to which AIC and Pioneer agreed that: 1) Pioneer would manufacture the materials for the Project System in accordance with the terms of the AIC/Lend Lease Agreement, including but not limited to the schedule and costs for the fabrication of the materials as set forth in the AIC/Lend Lease Agreement, specifically $4,922,365.00; 2) AIC would install the materials provided by Pioneer for the Project System in accordance with the terms of the AIC/Lend Lease Agreement, including but not limited to the schedule and costs for the installation of the materials as set forth in the AIC/Lend Lease Agreement, specifically $1,721,718.00; 3) each party would contribute its expertise to the Joint Venture, with Pioneer bringing its expertise in manufacturing and fabricating wall systems to the Joint Venture and AIC bringing its expertise in installing wall systems to the Joint Venture; and 4) after payment of costs for materials and installation, anticipated profits of approximately $1.1 million would be divided equally between AIC and Pioneer, provided that any losses would also be equally divided between the parties.
On or about January 25, 2011, Pioneer provided proposed drawings for the Project System ("Proposed System Drawings") to AIC which, with Pioneer's knowledge, sent the Proposed System Drawings to Lend Lease. The Proposed System Drawings reflected that the exterior facade would be a fusion wall system that featured machined curtain wall components that were notched at the slab level to bypass the slab edge while sitting directly on and below the floor slabs to which they were mechanically fastened and set from within the building.
Pursuant to the Joint Venture Agreement, AIC discussed with Pioneer a fabrication schedule for the Project System as depicted in the Proposed System Drawings. Pioneer advised AIC that the fabrication schedule ("Initial Fabrication Schedule") for the Project System as depicted by the Proposed System Drawings would be as follows: delivery of the first set of panels by mid-December 2011; thereafter, panels for a minimum of two (2) floors per week would be delivered in accordance with the AIC/Lend Lease Agreement; and, as required by the AIC/Lend Lease Agreement, completion of the Project System would be achieved within 355calendar days of the first delivery of panels in mid-December 2011. AIC, with Pioneer's knowledge, conveyed to Lend Lease the Initial Fabrication Schedule.
Pursuant to the Joint Venture Agreement, Pioneer thereafter manufactured a built-in mock-up ("Mock-Up") of the panels for the Project System as depicted by the Proposed System Drawings. During Lend Lease and AIC's review of the Mock-Up at Pioneer's plant, it became apparent that the Proposed System could not be manufactured as depicted by the Proposed System Drawings, and Pioneer advised AIC that modifications were needed. In or about late September 2011, Pioneer advised AIC, which advised Lend Lease, that the Project System as depicted by the Proposed System Drawings failed to account for mating the in-corners and the out-corners which, by design, required panels to be installed sequentially and, therefore, the Project System as depicted by the Proposed System Drawings could not be properly assembled. Pioneer proposed to AIC, which proposed to Lend Lease and other parties, that the Proposed System should be modified ("Second Change") from a fusion wall system to a standard curtain wall system, with notched mullions connecting to top slabs which, Pioneer represented,...
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